Scottish Court of Session Decisions

This was an action at the instance of John Williamson, Union Hotel, Dunfermline, against R. Howard, 272 High Street, Glasgow, in which the pursuer originally concluded (1) for specific performance by the defender of a contract for the sale of the Union Hotel, Dunfermline, and for payment of the price, viz., £8750, with interest, in exchange for a conveyance of the subjects, “the pursuer, however, allowing, if the defender so desire, £4000 of said sum ( i.e., the price) to remain on mortgage at 4 per cent.;” or alternatively (2) for payment of the sum of £2750 as damages for breach of contract.

A proof was allowed and led, and at the hearing of counsel thereon it was suggested that the first alternative conclusion of the summons should be amended. Accordingly, on 20th January 1899, the Lord Ordinary ( Kincairney) pronounced the following interlocutor:—“Allows the first alternative conclusion of the summons to be amended as proposed by the minute No. 48 of process; and the amendment having been made, and having heard counsel for the parties on the proof adduced, makes avizandum, reserving as to expenses.”

The minute referred to was as follows:—“Thomson for pursuer craved leave to amend the first alternative conclusion of the summons by substituting for the words ‘Four thousand pounds of said sum to remain on mortgage at four per cent.,’ the words following, namely, ‘Four thousand five hundred pounds of the said sum to remain on bond for five years at four percent. interest so long as said interest is regularly paid and the property kept in good order and repair, and the licensed business on said property so conducted that no breach of certificate be committed.’”

Thereafter the Lord Ordinary, on 31st January 1899, pronounced an interlocutor finding that the defender was not bound to implement the contract, and assoilzieing him from the conclusions of the summons, with expenses.

The pursuer reclaimed. The reclaiming-note was boxed on 14th February. Neither the interlocutor allowing the amendment nor the minute quoted supra were boxed along with the reclaiming-note, and the summons, so far as appeared from the print appended to the reclaiming-note, stood as it was before the amendment was made.

On 10th May prints of the interlocutor allowing the amendment, and of the minute of amendment, were boxed as additional prints for the pursuer and reclaimer.

The amendment upon the principal copy of the summons was not in fact initialled by counsel until 17th May.

Between the dates of the Lord Ordinary's interlocutor and the date of the hearing in the Second Division, the pursuer sold the property in question, and it was explained to the Court that he was now only insisting in the alternative conclusion for damages.

The Act of Sederunt 11th July 1828 enacts as follows:—(Section 77) “That reclaiming-notes, not being against decrees-in-absence or upon failure to comply with orders, shall at first be moved merely as single bills, and immediately ordered to the roll, and shall then be put out on the short or summar roll as the case may be. Provided always, that such notes, if reclaiming against an Outer House interlocutor, shall not be received unless there be appended thereto copies of the mutual cases, if any, and of the papers authenticated as the record, in terms of the statute, if the record has been closed, and also copies of the letters of suspension or advocation, and of the summons, with amendment, if any, and defences.”.

The defender and respondent objected to the competency of the reclaiming-note, and argued—The provisions of the Court of Session Act 1825, sec. 18, and the Act of Sederunt 11th July 1828, sec. 77, were imperative, and where they had not been complied with a reclaiming-note could not be received even of consent— M'Evoy v. Brae's Trustees, January 16, 1891, 18 R. 417; Wallace v. Braid, February 16, 1899, 36 S.L.R. 419; Watt's Trustees v. More, January 16, 1890, 17 R. 318. The omission to print and box any part of the record along with the reclaiming-note was fatal— Muir v. Muir, October 17, 1874, 2 R. 26, which was a case of omission to print an amendment, and Carter v. Johnston, February 6, 1847, 9 D. 598 (omission to print pleas-in-law). The Act of Sederunt specially mentioned amendments of the summons among the papers to be printed and boxed along with the reclaiming-note, and whether the amendment was material or not the provisions of the Act of Sederunt must be obeyed. It was no answer therefore to the present objection that this amendment was immaterial to the only question which the Court had now to decide.

Argued for the pursuer and reclaimer—The pursuer could only now insist, and was only now insisting, in the conclusion for damages. The amendment only applied to the conclusion for specific implement, and that conclusion was now withdrawn from the consideration of the Court. The amendment was therefore entirely immaterial to the only question which the Court had to decide. In Muir v. Muir, cit., the judgment of the Court proceeded upon the ground that the amendments were extensive and material, and had formed the main subject of discussion in the Outer House. Apparently if this had not been so, and the amendment had been trifling and immaterial, as it was here, the reclaiming-note in Muir would not have been refused. If the respondent's view were sound, then if one line of the summons was omitted through a printer's error not detected, however immaterial that line might be, the reclaiming—note must be refused as incompetent.